Grissom v. Hobbs

476 S.W.3d 160

Darrell Grissom, Appellant

v.Ray Hobbs, Director, Arkansas Department of Correction, Appellee

No. CV–15–247

Supreme Court of Arkansas.

Opinion Delivered December 3, 2015

Darrell Grissom, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

PER CURIAM

In 2004, appellant Darrell Grissom was found guilty by a Faulkner County jury of one count of rape, one count of incest, four counts of sexual abuse, and thirteen counts of sexual assault. He was sentenced to an aggregate term of 1,584 months' imprisonment. The Arkansas Court of Appeals affirmed. Grissom v. State, CR–04–1396 (Ark. App. June 8, 2005) (unpublished) (original docket no. CACR 04–1396).

Grissom was subsequently incarcerated in Lincoln County. In 2014, filed in the Lincoln County Circuit Court a pro se petition for writ of habeas corpus pursuant to Arkansas Code Annotated sections 16–112–101 to –123 (Repl. 2006), claiming his judgment was invalid because the State committed a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to provide him with a "Bill of Particular" listing the "time elements of the alleged crimes" and because his counsel was ineffective for failing to adequately preserve an issue for appellate review and for "failing to utilize certain evidence concerning grounds raised in appellate proceedings." The petition was dismissed by the circuit court because Grissom failed to attach a copy of his judgment-and-commitment order¹ and because his claims of ineffective assistance of counsel were not cognizable in a habeas proceeding. Grissom brings this appeal.²

A circuit court's denial of habeas relief will not be reversed unless the court's findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Bryant v. Hobbs, 2014 Ark. 287, 2014 WL 2813280 (per curiam).

A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Glaze v. Hobbs, 2013 Ark. 458, 2013 WL 5968931 (per curiam); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). The burden is on the petitioner in a habeas-corpus petition to establish that the circuit court lacked jurisdiction or that the judgment-and-commitment order was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 2006) (per curiam). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a "showing by affidavit or other evidence [of] probable cause to believe" that he is illegally detained. Id. at 221, 226 S.W.3d at 798.

Although raised below, Grissom has abandoned on appeal his claims of ineffective assistance of counsel. All arguments made below but not raised on appeal are abandoned. Abernathy v. State, 2012 Ark. 59, at 2, 386 S.W.3d 477, 480 (per curiam) (citing State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007) ). Even if Grissom had raised those claims here, allegations of ineffective assistance of counsel are not cognizable in a habeas proceeding. Lewis v. State, 2013 Ark. 336, at 4, 2013 WL 5305904 (per curiam). A habeas-corpus proceeding does not afford a prisoner a means to revisit the merits of matters that could have been addressed and settled in the circuit court, on appeal, or in a postconviction proceeding. Id.

Grissom contends on appeal that the evidence against him was insufficient to support his convictions, particularly in light of the State withholding Brady material regarding the dates and times during which the numerous sexual offenses occurred, i.e., the outcome of his trial would have been different had the "Bill of Particular evidence [ ] been disclosed." Claims of prosecutorial misconduct, including Brady violations based on allegations of withheld evidence, do not fall within the scope of a habeas proceeding. Smith v. Hobbs, 2015 Ark. 213, at 6, 2015 WL 2330146 (per curiam).

Even if Grissom intended his allegation to be that he was not properly advised of the charges against him, the proper time to object to the form or sufficiency of the charging instrument was prior to trial. Id. A habeas proceeding attacking the judgment of conviction is not a means to attack the charging instrument. Id. To the extent Grissom contends that the alleged prosecutorial misconduct affected his due-process rights, that contention also fails because he did not challenge the facial validity of the judgment or the court's jurisdiction. See Griffis v. Hobbs, 2015 Ark. 121, at 4–5, 458 S.W.3d 703, 706 (per curiam) (citing Tryon v. Hobbs, 2011 Ark. 76, 2011 WL 573832 (per curiam)).

Grissom further contends that mitigating evidence—had it been admitted at trial—regarding his psychological problems, lack of education, abuse suffered as a child, and other factors suggested that he had lessened culpability; hence, his sentence is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Grissom raises this claim for the first time on appeal, and issues raised for the first time on appeal are not grounds to reverse the circuit court's order. See Gardner v. Hobbs, 2014 Ark. 346, at 5, 439 S.W.3d 663, 667 (per curiam). Nevertheless, Grissom does not claim that the sentences imposed on him were outside the statutory limits for the offenses, as he merely argues that mitigating factors should have been considered to "result in a sentence below that received by similarly situated offenders[.]" Where the law does not authorize the particular sentence pronounced by a circuit court, the sentence is...